In healthcare, there has been a large expansion in non-compete clauses. Many of our clients would like to find a way out of their non-compete clause when looking to leave their current employment.
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The first way to avoid breaching a non-compete clause is to have your attorney negotiate a contract without a non-compete clause before beginning your employment.
Sometimes, non-compete clauses are unavoidable. So what can you do in that situation?
- Make sure you understand the language of your non-compete. Are there any exceptions? Were any hospitals carved out or possibly an exception was made for entering into private practice? If you are looking to waive a non-compete, first have a healthcare attorney carefully review the provision for possible exceptions. You can also attempt to provide services that are not included in the language of the non-compete.
- Propose an amendment waiving the clause. We often work with clients who entered into non-compete agreements to help them see if they can enter into an amendment waiving their non-compete. Sometimes this is as simple as having a discussion with your employer and preparing a short amendment to your contract. However, sometimes complicated negotiations take place to come to an agreeable compromise.
- Litigate the clause. This would be an extreme course of action, however, we have litigated non-compete clauses for our clients. While we don’t typically recommend litigation, there are exceptions to every rule. Litigation is costly and there is no way to know if the non-compete clause will be deemed reasonable or not. If it is reasonable, you will have spent time and money on a court case and still have to abide by the non-compete clause. However, if your clause is truly unreasonable and prevents you from earning a livelihood, it is worth discussing litigation with your attorney. Sometimes you will be forced to litigate if your employer sues you for breaching the non-compete, if they believe you are in breach.
- Work outside of the clause. While this may not be what you want to hear, sometimes it is essential to work outside the geographical limitation during the restricted time period. Once that time is up, you can start working in the area that was previously restricted.
Some of our clients ask us if they can simply risk it and ignore the non-compete provision. This is a very risky strategy, as the employer might sue them for breach and start a costly court battle. There might also be other clauses that this would trigger in the contract, such as indemnification.
Whatever the case, all non-competes are different and we always recommend meeting with an experienced attorney prior to agreeing to a non-compete or trying to work around a non-compete.
If you have questions or need help with your healthcare contract or your non-compete clause, contact Rickard & Associates today.
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